International trade and business attorney, Jon Yormick, will discuss Export Control Reform (ECR) and economic sanctions in 2 separate presentations in Buffalo next month.

On January 15, the Law Offices of Jon P. Yormick Co. LPA is co-sponsoring a 2-hour workshop, Export Control Reform, Revisited, with Mohawk Global Trade Advisors and Daemen College. The event will be held at Daemen College, with check-in beginning at 8:30 am. The program will run from 9:00-11:00 am. In addition to Jon, the workshop will feature Jim Trubits of Mohawk Global Trade Advisors, and Rae Perrott of Moog, Inc. They will discuss and share experiences with the recently implemented ECR from the perspectives of a global exporting company, a freight forwarder, and legal counsel. The focus will be on the transition of defense articles from the ITAR to the EAR, new AES documentation requirements, and tips for export compliance based on lessons learned from recent consent decrees. The cost is $35 and includes breakfast. For registration, contact Abby Frank at 315.552.3001 or at afrank@mohawkglobal.com.

Also on January 15, Jon will give a presentation at the Buffalo World Trade Association’s monthly dinner meeting. The BWTA was founded in 1921 and has the mission of expanding international business knowledge and activity of U.S. and Canadian companies in the Buffalo Niagara region. In his presentation, Navigating Economic Sanctions Successfully, Jon will discuss economic sanctions regimes, OFAC General Licenses and TSRA licenses that give companies certain business opportunities within the U.S. sanctions regimes, and emphasize economic sanctions compliance, including lessons learned from recent OFAC and BIS civil penalty cases. The meeting will be held at the Millennium Hotel, 2040 Walden Ave., with cocktails beginning at 5:30 and dinner at 6:30 pm. For registration and membership information, visit www.bwta.us.

On October 22, the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) announced they had reached an agreement with Diebold, Inc. to settle allegations that the company violated the Foreign Corrupt Practices Act (FCPA). The ATM manufacturer, headquartered in North Canton, Ohio, settled with the DOJ and SEC by agreeing to pay nearly $50 million to resolve allegations that it violated the FCPA by bribing government officials in China and Indonesia and falsifying records in Russia in order to obtain and retain contracts to provide ATMs to state-owned and private banks in those countries. According to the DOJ press release, the company made payments and provided gifts and non-business travel to bank employees, recording leisure travel for bank employees as “training.” The DOJ acknowledged that Diebold cooperated in the investigation, including making a voluntary disclosure regarding the FCPA violations.

A few weeks later, in mid-November Cleveland-based Park-Ohio Holdings, Inc. stated in its quarterly SEC filing that it received a subpoena from the SEC in August in connection with a third-party and that the DOJ was conducting a criminal investigation of the third-party. According to the company’s SEC filing, the third-party paid a foreign tax official on behalf of the company in 2007 and that the activity “implicates” the FCPA. The country where the payment was made was not identified.

In the middle of those reports, on October 25, the U.S. Department of Commerce, Bureau of Industry and Security (BIS), released a settlement agreement and order relating to GrafTech International Holdings, Inc., with global headquarters in the Cleveland suburb of Parma. The company settled 12 proposed charges that it exported without required licenses, agreeing to pay $300,000.00 and complete an external audit of its export controls compliance program and those of three overseas operations. While the case did not result in eye-catching multi-million dollar penalties, it is noteworthy nonetheless.

BIS alleged that on four occasions between 2007 and 2009, GrafTech violated the export control regulations when it exported CGW grade graphite to China without an export license. The graphite was classified under ECCN 1C107.a and controlled for missile technology reasons. The shipments had a value of approximately $276,000.00. BIS also alleged that on eight occasions between 2007 and 2010, GrafTech exported CGW grade graphite to India, without required export licenses. The value of those shipments totaled approximately $248,000.00. The settlement agreement stated that GrafTech made a voluntary self-disclosure regarding the violations. Notably, in April 2010, BIS, Office of Technology Evaluation, issued Critical Technology Assessment: Fine Grain, High Density Graphite which addressed U.S. export controls, among other key topics. That report can be found here.

As mentioned, in addition to the $300,000.00 penalty, GrafTech agreed to complete an external audit export controls compliance program and the compliance programs’ three subsidiaries, located in France, Italy, and South Africa. The settlement agreement and BIS order did not detail the involvement of the subsidiaries in the violations, if any, but it can be presumed that the company’s export controls compliance program at each location were a concern to BIS.

According to the terms of settlement, GrafTech must hire a third-party consultant with expertise in U.S. export control law to conduct the audit with respect to all exports and re-exports of items on the Commerce Control List (CCL). The audit must cover a twelve-month period preceding the date of the order and must be delivered to BIS within eighteen (18) months. The order also requires the company to identify actual or potential violations by any of the four entities being audited, including the directive that GrafTech “promptly provide copies of the pertinent air waybills and other export control documents and supporting documentation” to BIS.

Why there is an apparent recent rash of enforcement actions involving Northeast Ohio companies doing business globally is a mystery. Certainly, these revelations should be a “wake-up call” for companies in the region that conduct business globally and have global operations. More broadly, of course, these reports emphasize the need for all U.S. companies to re-double their FCPA and export control compliance efforts in order to avoid costly civil and criminal penalties, additional enforcement expenses, and the reputational harm that violations can cause.

For assistance with understanding and complying with the Export Administration Regulations (EAR) or other export controls and economic sanctions, as well as representation before BIS in investigations, civil penalty, and voluntary self-disclosure matters, please contact Jon P. Yormick, Esq., jon@yormicklaw.com or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.928.3474.

These days, U.S. exporters and transactional attorneys know (or should know) that there is successor liability for export violations, whether the violations occurred under the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR). Press releases and publications of civil penalty settlements and consent agreements are issued almost daily by either or both of the agencies that administer and enforce these export control regimes and the related statutes – the U.S. Department of Commerce, Bureau of Industry and Security (BIS), and the U.S. Department of State, Directorate of Defense Trade Controls (DDTC), respectively.

The same is true for violations of the numerous comprehensive and targeted sanctions programs administered and enforced by the Department of Treasury, Office of Foreign Assets Control (OFAC). In case you miss any of those publicly issued notices from the U.S. Government, law firms and consultants re-tell or provide a link to each announced settlement through client advisories, alerts, articles, blogs, and tweets. And there are plenty of scary presentations given around the world daily, rightfully extolling compliance, avoiding criminal investigations and penalties, and the threat of denial of export privileges. More than occasionally, the cases involve export violations that occurred at an acquired domestic or foreign subsidiary; yet, the successor company is “on the hook” for the violations.

But importers, both U.S.-based and non-resident importers, should not feel left out of the successor liability spotlight. U.S. Customs and Border Protection (Customs) does not routinely publish information about civil penalty cases that are resolved administratively. There are just too many and probably most are not as interesting to read as the export and sanctions penalty settlements tend to be. However, the U.S. Department of Justice (DOJ) regularly files cases to collect unpaid penalties and duties in the U.S. Court of International Trade. One such recently filed case is United States v. Adaptive Microsystems, LLC, et al., Court No. 12-00122, and this case involves a claim for successor liability.

In this case, CBP is pursuing a claim for unpaid duties and penalties under 19 U.S.C. § 1592 (“section 592”). CBP is pursuing it claim against a defendant that it alleges is responsible for the debts of a now-defunct Wisconsin company. Both that defendant and the defunct company have the same name – Adaptive Microsystems, LLC. Customs alleges that from 2005-10, the defunct company intentionally or negligently misclassified imports of LED panels from Malaysia, using duty-free tariff headings.

The facts show that 95% of the defunct company was owned by another Wisconsin, non-party company (of which a particular non-party individual owned a 15.8% share) and that the non-party individual served as executive vice president of the defunct company. In 2011, the defunct company’s bank initiated a receivership action against the company in state court, resulting in a receiver being appointed. Interestingly, Customs acknowledged that the receiver provided notice of the receivership action, yet Customs did not intervene in the action, instead relying on its priority creditor status under federal law.

A month after the receivership was initiated, however, Customs issued a pre-penalty notice of unpaid duties to the defunct company and upon apparently not receiving a response from any party, in July, 2011, Customs issued a penalty notice to the defunct company, demanding payment of outstanding duties and penalties in the amount of approximately $6.8 million. Meanwhile, after an unsuccessful auction of assets in the receivership action, at direction of the state court, the receiver entered into a purchase agreement with a Wisconsin company named AMS Acquisition , LLC. The purchase agreement called for AMS Acquisition, LLC to operate the business of the defunct company and its affiliates, including hiring a substantial number of employees to continue in their positions, and retaining the executive vice president who held the same position in the defunct company and has an ownership interest in the company that ultimately had an ownership interest in the defunct company. The sale was approved by the state court, but the Customs penalty was not addressed. Instead, the court approved the sale as free and clear of all claims and encumbrances, “or interests of any kind or nature.”

After the sale, company names were changed and the new company transferred shares of stock to the executive vice president. Less than a year later, Customs filed the lawsuit against the new entity, the defunct company, and the holding company that was organized for the underlying transaction, alleging that the new company defendant had purchased some portion of defunct company “out of receivership and it liable” for the defunct company’s debts.

Earlier this year, the defendant (“New AMS”) moved for summary judgment arguing that it did not succeed to the alleged unpaid duties and penalties of the defunct company and that its purchase of the defunct company’s assets did not assume these liabilities. Customs countered by arguing that there was a genuine issue of material fact as to whether one of four common law exceptions to Wisconsin’s general rule against successor liability applied.

Analyzing Wisconsin law, the Court of International Trade found that the de facto merger exception did not apply. There facts clearly showed that the executive vice president “did not receive his shares as consideration for the receivership sale” and the evidence also showed that at the time of the asset purchase, there was no plan that he was to become a shareholder. The court noted that under Wisconsin law, courts consistently refuse to apply the de facto merger exception when no shares changed hands in a sale. Accordingly, New AMS’s motion for summary judgment was granted as to this exception. The court then analyzed the mere continuation exception to the successor liability rule.

Under this exception, Customs argued that the new company was a mere continuation of the defunct company because there was “significant overlap” between the two companies. Customs pointed to the fact that New AMS hired substantially all of the defunct company’s employees and that the executive vice president was retained as an officer and owner the new company. Applying Wisconsin law, the court noted that the key element of mere continuation exception is a common identity of officers, directors, and shareholders in the purchasing and selling corporations and that the overlap of ownership and control, not merely the continuation of the same business operations, is the true test. The court also rejected New AMS’s argument that absolute identity of the officers and owners is required under the mere continuation exception and noted that the evidence presented by New AMS left open the possibility that other officers might have overlapped as well. For these reasons, the court found that a genuine issue of material fact existed and denied summary judgment on this exception.

This case illustrates that Customs is willing to pursue acquiring companies in asset purchase transactions for unpaid duties and penalties of the acquired company. Significantly, despite notice of the receivership, Customs chose not to participate in those proceedings, but instead issued a pre-penalty notice to the defunct company to which the Receiver apparently did not respond. Presumably, New AMS had knowledge of that notice and the ensuing penalty notice, yet none of the parties involved in the sale addressed the unpaid duties and penalties liability, instead apparently deciding that the state court’s approval of the sale as “free and clear” and the general rule against successor liability in an asset purchase would shield New AMS. While New AMS eventually may be relieved of liability for the defunct company’s unpaid duties and penalties, it is embroiled in litigation with the DOJ/Customs for more than a year now and little doubt has divulged details about the sale, company structure, and relationship of the parties that private companies tend to not have to provide to federal government lawyers and agencies.

Transactional attorneys should take particular note of this case and be sure to properly address outstanding Customs duty and penalty liabilities during due diligence or, as in this case, a receivership sale. Counsel experienced with identifying and addressing the Customs issues in a transaction such as this could have provided necessary support prior to the sale being consummated and head off the current litigation. Overlooking or ignoring unpaid duties and penalties can have unwelcomed and even dire consequences.

After ruling on the motion for summary judgment on April 10, 2013, the case has proceeded. On July 15 the court granted a joint motion to extend the fact discovery cut-off to October 31 and ordered the parties to file a joint status report proposing further proceedings by November 14, 2013. We will have to wait and see whether further motions for summary judgment are filed later this year, whether the parties potentially settle the case, or if it will proceed to trial.

For assistance with understanding and complying with U.S. Customs laws and regulations, due diligence support in merger and acquisitions and other strategic alliances, as well as representation before CBP in investigations, civil penalty, and prior disclosure matters, please contact Jon P. Yormick, Attorney and Counsellor at Law, jon@yormicklaw.com or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.928.3474.

Violations of the U.S. Antiboycott sections of the Export Administration Regulations (EAR) tend to not get much attention compared to other violations of the EAR, such as those involving evasion, acting with knowledge, or aiding and abetting. Antiboycott violations tend to lead to fewer civil penalty settlements with the Office of Antiboycott Compliance (OAC), Bureau of Industry and Security, U.S. Department of Commerce (BIS). When settlements are reported, they tend to be relatively minimal, but that might be changing in the wake of 2 settlements in the last several days.

In general, the OAC explains that the Antiboycott regulations “prohibit U.S. companies from furthering or supporting the boycott of Israel sponsored by the Arab League, and certain other countries, including complying with certain requests for information designed to verify compliance with the boycott.” Sales forces of U.S. companies that are well-trained in export control compliance know that complying with these requests might be prohibited under the EAR and just the request to comply may be reportable to BIS.

The June 7, 2013 Proposed Charging Letter to the Director of Sales & Marketing Operations at one of the companies that recently settled its alleged Antiboycott violations seems to show that the sales teams (and maybe the Credit Department) at some companies might not be knowledgeable enough about the Antiboycott regulations and compliance with them. The first case involved a $32,000 settlement with the OAC on 16 violations occurring between 2009-11 – one violation of furnishing information about business relationships with boycotted countries or blacklisted persons and 15 violations of failing to report the receipt of requests to engage in a restrictive trade practice or foreign boycott against a country friendly to the U.S. aka Israel. The company was alleged to be involved with selling or transferring goods or services from the U.S. to Bahrain, Oman, Qatar, and the UAE, all of which are generally friendly to the U.S. as well.

A table attached to the Proposed Charging Letter shows that the company provided information in a transport certificate for Oman stating “…the ship is permitted to enter Port Sultan Qaboos, in accordance with the Laws of Sultanate of Oman.” The company failed to report boycott compliance requests from Bahrain and Oman found in various transaction documents (possibly emails) and letters of credit. The requests included requests to ensure that the company “Delete all products, manufactured in Israel as they are banned in Bahrain,” or noting that “All Produce of Israel are Banned” and that the shipping company or agent was to issue a certificate that the ship was permitted to enter Muscat or Sultan Qaboos.

The second settlement with OAC involved 63 violations of the Antiboycott regulations – 5 for furnishing information and 58 for failing to report requests to comply with the boycott. This case was settled for $56,000. The 5 violations of furnishing information arose from emails and invoices, each confirming certain parts sold to a UAE party were not made in Israel. Additionally, 57 sales orders from the UAE and one from Malaysia each requested that the U.S. company cancel portions of the order because parts originated from Israel, requested substitute parts, confirm that parts were not made in Israel, of otherwise made clear that Israeli-origin products were prohibited.

As with all civil penalty settlements that are released to the public, these recent settlements with the OAC should be a “wake up call” for U.S. companies doing business in the Middle East and in other countries that support the Arab League boycott against Israel. The failure to train the sales and credit teams on identifying boycott requests, properly analyzing those requests for potential reporting to the OAC and complying with the U.S. Antiboycott regulations can be costly in terms of penalties and reputational harm.

For assistance with understanding and complying with the Antiboycott regulations, other provisions of the Export Administration Regulations (EAR) or other export controls and economic sanctions, as well as representation before BIS in investigations, civil penalty, and voluntary self-disclosure matters, please contact Jon P. Yormick, Esq., jon@yormicklaw.com or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.928.3474.

Ms. Brenda A. Cisneros Vilchis has joined the Law Offices of Jon P. Yormick Co. LPA as Counsel in the firm’s Buffalo office. Ms. Cisneros is licensed to practice law in Mexico and is awaiting admission to the bar in New York State.

Ms. Cisneros is a native of Monterrey, Mexico and earned her LL.M. from SUNY Buffalo Law School, where her classmates included students from Canada, Colombia, India, South Korea, and Ukraine. The LL.M. program is designed for practicing lawyers who hold a law degree from outside the U.S. and wish to broaden their skills and knowledge by learning more about the U.S. legal system. Ms. Cisneros earned her law degree from Facultad Libre de Derecho de Monterrey, A.C. and she also holds a Masters in Banking and Finance from Universidad de Alcala de Henares in Madrid, Spain.

“My international law practice assists private and publicly-traded companies on a wide-range of matters. Brenda’s addition in Buffalo will help me to better serve middle market clients in Upstate New York and Ontario,” said Jon Yormick, founder of the international business law firm, based in Cleveland. The firm also has an affiliation with the Mexican law firm Boutique Legal Internacional, based in Chihuahua, with an office in Ciudad Juárez. “As more U.S. and Canadian companies focus attention on Mexico as a growing market and manufacturing location for sectors such as aerospace, Brenda and our affiliate firm will be able to serve the increasing needs of those companies,” added Yormick.

Ms. Cisneros will be advising U.S. and Canadian clients on doing business in Mexico with private and state-owned companies and throughout Latin America. She will also work with Boutique Legal Internacional to assist companies seeking to expand in the Mexican market, ensuring that companies with operations in Mexico are complying with customs and tax regulations, and maximizing the benefits of the maquiladora program, IMMEX. Ms. Cisneros’s practice also includes advising foreign clients on U.S. business formation, drafting, reviewing, and negotiating international commercial agreements, and general corporate law.

Last week, Customs and Border Protection (CBP) Deputy Commissioner, David V. Aguilar, announced that the Port of Buffalo and 5 others ports will become CBP Centers of Excellence and Expertise (CEE). In Fiscal Year 2013, CBP will establish the CEE for Industrial & Manufacturing Materials in the Port of Buffalo. The other centers to be created are:

1. Agriculture & Prepared Products: Miami

2. Apparel, Footwear & Textiles: San Francisco

3. Base Metals: Chicago

4. Consumer Products & Mass Merchandising: Atlanta

5. Machinery: Laredo

CBP already operates CEEs for Electronics in Long Beach; Pharmaceuticals, Health & Chemicals in New York City; Automotive & Aerospace in Detroit; and Petroleum, Natural Gas & Minerals in Houston.

CEEs are virtual centers aimed at providing “one-stop processing” to lower the importers costs of doing business, provide greater consistency and predictability. Just as importantly, CEEs are designed to “enhance CBP enforcement efforts,” according to CBP’s press release.

Clearly, CEEs help provide a single point of contact for questions and concerns related to particular sectors, concentrating expertise and experience of CBP professionals to effectively facilitate trade. Greater expertise and facilitation is much welcomed, but CBP’s establishment of CEEs should also be a reminder for companies to review, update, and improve upon current importing practices and ensure that import compliance efforts are robust. In short, U.S. and non-U.S. resident importers should prepare to match the expertise of a CEE to avoid time-consuming and costly delays and potential penalties.

A recent Antiboycott penalty settlement serves as a reminder that U.S. parties have a dual obligation under the Antiboycott regulations and must diligently work with outside agents, such as document preparation specialists, to comply.

The Office of Antiboycott Compliance, Bureau of Industry and Security (OAC), alleged that in June, 2007, Polk Audio, Inc., a Maryland company, the company intended to “comply with, further or support an unsanctioned boycott” and failed to report the request that it “engage in a restrictive trade practice or boycott.” In the May 17, 2012 Proposed Charging Letter, the OAC alleged that Polk Audio’s “document preparation specialists” provided a vessel certificate to “persons in Oman” that certified the “vessel carrying the goods is allowed to enter the ports of Arab States/Oman.”

The second charge – failure to report – explained that the vessel certificate request originated in a letter of credit issued by HSBC Bank in Oman. By failing to report this request, Polk Audio allegedly violated the Antiboycott regulations a second time. The proposed charges were settled for a relatively minimal $8,000, not an uncommon amount for an OAC settlement.

This minimal settlement amount, however, should not be shrugged off by U.S. parties. First, exporting companies should confirm that their export compliance management program addresses the Antiboycott regulations; specifically, the dual duties – reporting a request to engage in a boycott, and not complying with that request. The OAC has all the details on the BIS website at, http://tinyurl.com/a6u8dd. As this settlement shows, companies that export on letters of credit need to carefully review the terms for language that requests actions that violate the Antiboycott regulations and when outside agents handle letter of credit review and preparation, exporters must be sure those agents are familiar with the regulations as well.

Also, the minimal settlement in Polk Audio was in connection with a single transaction occurring 5 years ago. Large volume exporters to and those bidding on tenders and responding to RFPs in Middle East countries should be particularly diligent in their compliance efforts. Just 2 years ago Daewoo Auto settled 59 Antiboycott violation charges for $88,500. So these penalties can add up quickly. Many companies may need to conduct an internal review of their transactions in the past 5 years and consider a voluntary self-disclosure regarding any Antiboycott violations that may be found.

At the recent BIS Update 2012 Conference, it was noted that the OAC tends to see over-reporting by some companies. It is not a violation to over-report questionable Antiboycott requests; rather it is a sign of a robust export compliance program. It was also noted that the OAC can assist U.S. companies by working with different governments to exclude offending language found in tenders, RFPs, and other documents.

Upcoming presentations by international business and trade attorney, Jon Yormick, will focus on Export Control Reform (ECR) and the “deemed export” rule.

On September 9, Jon will speak at the Ohio Foreign Commerce Association’s luncheon meeting. His presentation on Preparing for Compliance and Enforcement Under Export Control Reform, will address the impact of ECR on a company’s export compliance program and how the enforcement landscape is changing with ECR.

In Albany, New York on September 20, immediately following the Annual Northern Border Update of the Upstate New York Chapter – American Immigration Lawyers Association, Jon will present at a day-long CLE conference, Where Immigration Meets Other Law. The conference will be held at Albany’s historic Ft. Orange Club and is presented by the Upstate New York Chapter – AILA and the Albany County Bar Association. Jon will present What Immigration Lawyers Should Know About Export Controls and explain how business immigration counsel can effectively assist technology sector clients in meeting their export controls compliance burdens, including the I-129 Part 6 certification and the Department of Commerce, Bureau of Industry and Security’s enforcement of the “deemed export” rule. He will be joined by Jim Trubits of Mohawk Global Trade Advisors. Seating is limited. For more information, please visit http://bit.ly/14TwonL or register now for this event at http://conta.cc/12CLwsa.

In September, Jon Yormick will speak on U.S. export controls and offer guidance on compliance measures organizations must take in this era of investigations, enforcement, and increased penalties.

On September 19 in Buffalo, Jon will address the American Immigration Lawyers Association Upstate New York Chapter at its dinner meeting, “What Upstate NY Immigration Lawyers Should Know About Export Controls.” His presentation will focus on the I-129 Part 6 Certification requirements and the role of immigration counsel in export controls compliance. Jon will discuss specific issues regarding compliance with the deemed export rule, including dual/third-country nationals, TN and B-1 visa, and staffing company concerns. He will be joined by Jim Trubits of Mohawk Global Advisory Services. The meeting will be held at the Protocol Restaurant and be videotaped for Lawline CLE.

Two days later, on September 21, Jon will speak at the Ohio Aerospace Institute’s Industry Roundtable meeting on “Busting Myths of DDTC Registration.” He will debunk misconceptions and misunderstanding about registration and provide guidance on what aerospace, defense, technology companies and universities need to know about registering with the Department of State, Directorate of Defense Trade Controls (DDTC) for items and technical data on the U.S. Munitions List and provide an update on Export Control Reform (ECR).

A Long Island, New York company, Aeroflex, Inc., has entered into an $8 million settlement with the U.S. Department of State for an estimated 158 alleged violations of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR).

According to the nearly 18-page long Proposed Charging Letter, the Department considered the series of voluntary disclosures submitted by the company and its remedial compliance measures as “significant mitigating factors” in deciding the charges to pursue. The Department, however, found that there were significant national security interests involved and systemic and longstanding violations, including improper product classifications, and decided to charge the company with an estimated 158 violations for unauthorized exports based on information contained in the voluntary disclosures.

The Department found that the “violations were caused by inadequate corporate oversight and demonstrate systemic and corporate-wide failure to properly determine export control jurisdiction over commodities,” leading to “the unauthorized exports and re-exports of ITAR-controlled electronics, microelectronics, and associated technical data; and caused unauthorized exports of ITAR-controlled microelectronics by domestic purchasers.”

The 158 alleged violations included: 32 unauthorized exports of ITAR-controlled microelectronics and electronics, including to NATO and other allied countries; 96 unauthorized exports of ITAR-controlled microelectronics to China; causing 18 unauthorized exports of defense articles when the company and its subsidiaries “sold ITAR-controlled radiation tolerant multipurpose transceivers to domestic buyers who exported the transceivers without Department authorization,” due to Aeroflex’s incorrect jurisdiction determination; causing 7 unauthorized exports of defense articles to China by exporting “ITAR-controlled microelectronics to foreign entities who then re-exported these defense articles to the People’s Republic of China without Department authorization,” again due to making incorrect jurisdiction determinations; causing an unauthorized export of defense articles when it sold ITAR-controlled integrated circuits to the UAE for end-use on satellite projects in India, knowing the items would be re-exported without Department authorization; and misused the ITAR Canadian exemption 4 times when it exported radiation hardened microelectronics to Canada without Department authorization.

Despite the company-wide failures noted in the Proposed Charging Letter, Aeroflex and its subsidiaries apparently did make some efforts at export controls compliance – they were just badly misguided. The company apparently relied primarily on “commodity classification guidance from the Department of Commerce in reviewing the export control status of its microelectronics and electronics,” but failed to understand that Commerce can only properly classify items and technology that are subject to the Export Administration Regulations (EAR).

In other words, Aeroflex often skipped over the critical first-step in the export control analysis which is to determine jurisdiction over the commodities, technology, and software involved – whether jurisdiction lies with the Department of State or the Department of Commerce. Only after this determination is made, can classification be determined. The Proposed Charging Letter noted that while “companies may self-classify an article or service, it is to their advantage to seek a [Commodity Jurisdiction] CJ determination where a company has doubts” about whether an article or service is covered by the U.S. Munitions List and, therefore, falls under the jurisdiction of the Department of State.

Making the proper jurisdiction determination is highlighted not only by this settlement, but by Export Control Reform (ECR), which, in a little more than 60 days, will cause a shift in jurisdiction from the Department of State to the Department of Commerce for certain aircraft parts and components and gas turbine engines. Companies should be well into their reviews of how ECR will impact their exports. And as the Aeroflex settlement shows, incomplete or incorrect analyses of jurisdiction can lead to costly violations. Companies should not assume that jurisdiction will shift for their items and technologies under ECR. Whether affected by ECR or not, companies should use this settlement as a reminder to review jurisdiction regularly or to perform that in-depth analysis for the first time before “systemic and longstanding violations” occur. There really are no short-cuts to be taken with export controls.